Hughes v Victorian WorkCover Authority - [2022] VSCA 124

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0105

PETER ALAN HUGHES	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	BEACH, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2022
DATE OF JUDGMENT:	27 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 124
JUDGMENT APPEALED FROM:	[2021] VCC 839 (Judge Carmody)

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ACCIDENT COMPENSATION – Workplace injury – Serious injury – Injury to left elbow – Loss of earning capacity – Where adverse credibility findings – Whether judge equated physical capacity to perform roles with ‘suitable employment’ – Whether judge misstated or misinterpreted evidence – Whether judge gave adequate reasons – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3, 325, 327 – Richter v Driscoll (2016) 51 VR 95, applied – Leave to appeal refused.

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Counsel
Applicant:		Mr A Ingram QC with Dr J Plunkett
Respondent:		Ms F Ryan SC with Ms E Golshtein
Solicitors
Applicant:	Maurice Blackburn Lawyers
Respondent:	IDP Lawyers

BEACH JA
MCLEISH JA
KENNEDY JA:

1The applicant is a 59 year old man who formerly worked as a butcher. He sought leave pursuant to s 327 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘Act’) to bring an action in damages in respect of an injury he suffered to his left elbow in the course of his work.[1] In order to obtain that leave he needed to establish that he had suffered a serious injury within the meaning of s 325 of the Act.
[1]The applicant initially sought to bring claims in relation to a serious injury to his left elbow, a serious injury to his right elbow (secondary to the injury to his left elbow), a serious injury by reason of chronic regional pain syndrome and/or a serious psychological injury, however he abandoned reliance on all but the serious injury to his left elbow at the hearing.
2The applicant submitted that the left elbow injury was ‘serious’ with respect to both pain and suffering consequences, and loss of earning capacity consequences. In relation to the latter, the applicant was required to establish that the amount he was capable of earning in ‘suitable employment’ was no greater than 60 per cent of his ‘without injury’ earnings in accordance with the Act.
3A County Court judge made a number of adverse credit findings in respect of the applicant. These included findings about the level of his pain, as well as his physical capacity to perform three specific (non-butcher) roles. In the result, the judge only granted the applicant leave to bring proceedings for pain and suffering damages.
4The applicant now seeks leave to appeal the judge’s decision to dismiss his application in relation to economic loss. In particular, he claims that the judge erred in law by ‘equating’ a physical capacity to perform a role with the concept of ‘suitable employment’. He also alleges that the judge misstated or misinterpreted certain medical opinions, and failed to give adequate reasons.
5For the following reasons, we have determined that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSCA 124
Decision Date: 27 June 2022

CaseChat Overview and Summary

In Hughes v Victorian WorkCover Authority, the applicant sought compensation for injuries sustained in a workplace accident. The dispute centred on the determination of the severity of his injury and the impact on his earning capacity. The case was heard in the Court of Appeal, with the decision being a refusal of leave to appeal.

The legal issues before the court involved the interpretation of the Workplace Injury Rehabilitation and Compensation Act 2013. Specifically, the court had to consider whether the trial judge had correctly assessed the applicant's loss of earning capacity, and whether the judge had adequately considered the concept of 'suitable employment' as distinct from the physical capacity to perform specific roles. Additionally, the court examined whether the trial judge had misstated or misinterpreted the evidence, and if the reasons provided were sufficient.

The court found that the trial judge had correctly applied the statutory provisions and case law, particularly the decision in Richter v Driscoll. The reasoning was that the judge had considered the evidence and the statutory criteria, and had not erred in equating the physical capacity to perform roles with 'suitable employment'. The court also determined that the reasons provided by the trial judge were adequate and did not misstate or misinterpret the evidence. Therefore, the appeal was dismissed, and leave to appeal was refused.

No additional orders were made by the court beyond the refusal of leave to appeal.

Orders